Posts in Antitrust

Costco Prevails in First Sale Case Thanks to Copyright Misuse

On November 9, 2011, the United States District Court for the Eastern District of California, per Senior Judge Terry J. Hatter, Jr., granted Costco a summary judgment victory due to the fact that Omega engaged in copyright misuse. Yes, the plot thickened. The district court originally granted summary judgment to Costco on the basis of the first sale doctrine, which was overturned by the Ninth Circuit and then affirmed by the Supreme Court in the tie decision, or non-decision of December 2010. That meant that the case would proceed because the first sale doctrine summary judgment victory was erased. But not so fast! Judge Hatter had other ideas!

FTC Proposal for Regulating IP Will Harm Consumers

We conclude that the FTC has not identified sufficient evidence to raise serious doubt about the current efficiencies of the IP marketplace. Indeed, the available empirical evidence suggests that these existing rules and practices work well. The interests of consumers are well represented by standard setting organizations and competition among technology implementers who at the end of the day must make goods and services that people wish to purchase.

Antitrust Issues in College Athletics: Should Needle Apply

Earlier this month Dechert LLP, representing an undisclosed number of companies (“stakeholders”), sent a letter to IMG College (“IMG”) and its licensing division, the Collegiate Licensing Company (“CLC”), and demanded that IMG and CLC cease and desist any efforts to restrict the number of licensees permitted to supply merchandise bearing the brands of various NCAA colleges and universities. It looks likes trademark and antitrust issues are back on the menu in sports, which makes intellectual property nerds like me very happy. We all knew American Needle Inc. v. National Football League (“Needle”) would embolden private antitrust suits; it was just a question of when. But a pivotal question is should Needle be extended to permit private antitrust suits in collegiate athletics?

NFL Players vs. Owners: A Hail Mary of a Lawsuit

About 10 years ago, the NFLP decided that they wanted Reebok (and only Reebok) to make hats with the teams’ logos on them. American Needle, Inc., a competitor of Reebok, had been making these types of hats for the NFL for a really long time, and as a result of the NFLP’s deal with Reebok, it lost its contract with NFLP to make said hats. American Needle, Inc. did not have much of a sense of humor about this and sued the NFL under Antitrust principles. Enter American Needle v. National Football League et al. Needle is a big case because if the NFL had gotten what it asked for, the player’s union wouldn’t have been able to decertify and the players wouldn’t have been able to bring an antitrust suit.

Hatch-Waxman at the Supreme Court: Supporting Cert. in Cipro

One of the most debated issues in patent and antitrust law today involves pharmaceutical patent settlements. Brand-name drug manufacturers pay generic firms to settle patent litigation and delay entering the market. How should the antitrust laws respond? The Cipro case presents an ideal vehicle for Supreme Court review. It involves a simple, undisputed payment from brand to generic to delay entering the market.

Mark Lemley Part 2: In re Cipro, Patent Misuse, Fun Stuff

In part 1 of my interview with Mark Lemley we discussed whether the Supreme Court will take the i4i v. Microsoft case and address the presumption of validity, as well as what implications such a ruling would have on the value of previously acquired property rights. In part 2 of the interview, which appears below, we move past the presumption of validity to several other patent matters, including reverse pharma payments and In re Ciproflaxacin, the Stanford Patent Prize, patent misuse, patent trolls and the usual fun questions with a heavy emphasis on science fiction.

FTC and DOJ Issue Revised Horizontal Merger Guidelines

The Federal Trade Commission and Department of Justice on Friday, August 19, 2010, issued revised Horizontal Merger Guidelines that outline how the federal antitrust agencies evaluate the likely competitive impact of mergers and whether those mergers comply with U.S. antitrust law. These changes to the Guidelines mark the first major revision of the merger guidelines in 18 years, and is…

FTC Settles Charges of Anticompetitive Conduct Against Intel

The Federal Trade Commission approved a settlement with Intel Corp. that resolves charges the company illegally stifled competition in the market for computer chips. Intel has agreed to provisions that will open the door to renewed competition and prevent Intel from suppressing competition in the future. Under this agreement Intel must modify its intellectual property agreements with AMD, Nvidia, and Via so that those companies have more freedom to consider mergers or joint ventures with other companies, without the threat of being sued by Intel for patent infringement.

Emotion and Anecdotes Should Not Drive Patent Policy Debate

Who among us likes monopolies? Monopolies charge super competitive prices and consumers have no leverage, which leads frequently to inferior goods or services that consumers are forced to accept. This aversion to monopolies has been ingrained in American culture and heritage since the founding of the Nation, and was taken to new extremes during President Theodore Roosevelt’s Administration. While a patent does not confer a monopoly, patents can result in economic power through exclusion of competitors. It is this fundamental aspect of the patent right granted by the government that attracts investors to companies that have acquired patent rights.

Profs File Amici Curiae Seeking En Banc Rehearing of Second Circuit Pharma Reverse Payment Antitrust Decision

86 law, economics, public policy and business professors filed an amici curiae brief with the United States Court of Appeals for the Second Circuit seeking the en banc review of the panel decision in In re Ciprofloxacin Hydrochloride Antitrust Litigation, which issued on April 29, 2010. Mark A. Lemley, William H. Neukom Professor, Stanford Law School and partner in the San Francisco law firm Durie Tangri LLP, is representing the 86 professors pursuing this matter pro bono as a concerned law professor and not on behalf of any client. When asked for comment he offered that he thinks “the Cipro case may well be the turning point in legal treatment of reverse settlements.”

Pharma Reverse Patent Payments Are Not An Antitrust Violation

The plaintiffs had argued that defendants had in fact violated Section 1 of the Sherman Act when they settled their dispute concerning the validity of Bayer’s Cipro patent by agreeing to a reverse exclusionary payment settlement. Bayer agreed to pay the generic challengers, and in exchange the generic firms conceded the validity of the Cipro patent. The Second Circuit panel affirmed the granting of summary judgment, finding themselves confined by the previous Second Circuit ruling in Tamoxifen. The panel did, however, make the extraordinary invitation to petition the Second Circuit for rehearing in banc, citing the exceptional importance of the antitrust implications, the fact that the primary authors of the Hatch-Waxman Act have stated reverse payments were never intended under the legislation and the fact that the Second Circuit in Tamoxifen simply got it wrong when they said that subsequent generic entrants could potentially obtain a 180 exclusive period even after the first would-be generic entrant had settled.

Rambus Patent Related Antitrust Saga Appears to Be Over

European Union regulators on Wednesday dropped an antitrust investigation into Rambus Inc. after the company agreed to cap royalty fees for memory chip patents. In an agreement reached between EU regulators and Rambus, Rambus will not charge any royalties for SDR and DDR chip standards and to bring fees for newer versions of DDR down from 3.5 percent to 1.5…

DOJ Says Google Copyright Book Settlement Not Appropriate

The United States Department of Justice on Friday filed papers with the United States Federal District Court for the Southern District of New York, challenging the settlement reached by Google and the plaintiffs in the copyright litigation challenging how Google is digitizing books and offering them for free. The DOJ told the court in a 32 page filing that the…

Google Pays $125 Million Copyright Settlement

The Authors Guild, the Association of American Publishers (AAP), and Google recentl announced a groundbreaking settlement agreement on behalf of a broad class of authors and publishers worldwide that would expand online access to millions of in-copyright books and other written materials in the U.S. from the collections of a number of major U.S. libraries participating in Google Book Search. …